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Friday, February 26, 2010

Closing arguments in the Perry case: a public broadcast revisited

Will we be able to watch a telecast of closing arguments in the Perry case? The outcome depends on a pending change in Civil Local Rule 77-3 (permanent link) of the U.S. District Court for the Northern District. (SF Chronicle) Rule 77-3 bans public broadcast of courtroom proceedings, unless the judge authorizes the broadcast "within the confines of the courthouse." The rule change, if adopted, would allow judges to request permission to participate in the 9th Circuit's new "public access program" for "dissemination of video recordings in civil non-jury matters only."(9th Circuit Judicial Council press release, issued 12/17/09; permanent link) The Court will almost certainly adopt the rule change, because the Court adopted the same rule change on January 12th (permanent link), withdrawing it only after the U.S. Supreme Court questioned the validity of the District Court's rule-making procedure. [Hollingsworth v. Perry, 558 U. S. ____ (2010) (09A648)] Once the District Court adopts the rule, Judge Walker can be expected to seek authority, under the public access program, for broadcast of the closing arguments. Alex Kozinski, Chief Judge of the 9th Circuit, would almost certainly authorize this broadcast. Before the U.S. Supreme Court intervened, he permitted Walker to proceed with real-time transmission of the trial in three courthouses, while he reviewed Walker's plan for posting delayed, YouTube files on the Court's website. (In the Matter of Pilot District Court Public Access Program Approved December 16, 2009, No. 2010-2, 9th Cir. Judicial Council, Jan. 8, 2010) (permanent link)

[02/27/10 update: Journalist Karen Ocamb concludes that the Court's press release last night should end speculation about a public broadcast of closing arguments. (LGBT POV) I disagree.]

Why has the District Court renewed its effort to amend Rule 77-3 when the Supreme Court objected to its initial method of adopting the amendment? The Court still seeks to conform the rule to new 9th Circuit policy on selective public access to courtroom proceedings. Closing arguments in the Perry case have such public importance that it is an obvious candidate for application of the policy. The Court now has the opportunity to remedy procedural defects that a 5-4 Supreme Court majority ruled as a likely violation of federal law. Moreover, if Prop. 8 proponents try to challenge adoption of the rule change, they won't be able to allege "irreparable harm" to trial witnesses from its application to public broadcast of the closing arguments.